Duty

Question 1

Affirmative Duty to Act

Answer 1

Generally, no duty of action or forbearance to others unless very low burden of precuation and very high risk of harm

Question 2

Exceptions to No Affirmative Duty

Answer 2

o Common Carriers
o Special Relationships
♣ Doctor-Patient: Tarasoff
♣ Social Host-Guest: Harper, Carter
♣ Social Partners: Farwell (failed argument)
♣ Teacher-Student: AW
♣ Quasi-Parental: Bjerke
♣ In Loco Parentis: Williams
o Undertaking: Farwell
♣ Taking charge of someone
♣ Non-negligently injuring someone and you know or have reason to know of the harm you caused
♣ Telling someone you’re going to take an action, e.g. calling 911
o Duty to 3rd Parties when there’s foreseeable harm (and foreseeable victims): Tarasoff, Randi
♣ Public Policy argument against: Reynolds
o Duty to Warn: Tarasoff (and you’re the only person who can prevent harm)
o Landowner – Invitees: Carter
♣ Criminal Activity: Posecai (Specific Harm, Similar Prior Incidents, Totality, Balancing test)

Question 3

Harper v. Herman

Answer 3

Special Relationship:
F: P invitee on D’s boat, P dives into very shallow water, rendered quadriplegic. D did not warn
H: social host does not owe a duty of care to warn a guest about shallow water; need special relationship between the parties

Court lists four categories that could give rise to special relationship:

1. P particularly vulnerable, cannot protect self (e.g. passenger on common carrier)
2. D has considerable power over P’s welfare
3. D receiving financial gain by hosting P
4. P expects protection from D (e.g. information asymmetry; someone has paid for a tour)

Question 4

Bjerke v. Johnson

Answer 4

F: minor P resides at D’s stable w/ approval of parents; D tells parents will look after P; P ends up in sexual relationship w/ D’s boyfriend
H: D owed P duty for assuming quasi-parental role

Question 5

Farwell v. Keaton

Answer 5

Undertaking
F: P and D are out for the night, get into fight at bar, P gets beaten up, D finds him under car later, takes him to grandparents house, leaves P passed out in car overnight; P dies 3 days later. P’s expert says that if D had taken P to get medical treatment, chance of survival would have been >80%
H: Court says duty to avoid affirmative acts which worsen someone’s situation – here D entered voluntarily, assuming the duty of reasonable care (“taking charge of someone”)
Dissent says that majority conflated duty and breach. Argued majority is turning a moral duty into brief

Question 6

Rowland v. Christian

Answer 6

General Duty to All Rule:
When imposing duty of due care: multi-factor test:
o foreseeability of harm to P, (like negligence)
o degree of certainty that P suffered injury, (like cause in fact)
o closeness of connection between D’s conduct and injury suffered, (like proximate cause)
o moral blame on D’s conduct,
o policy of preventing future harm,
o burden to D and consequences to community for imposing duty

Question 7

Randi W. v. Muroc Joint Unified School District

Answer 7

F: Fraud and negligent misrepresentation case; P sexually assaulted by teacher, who was hired by school after positive recommendations from previous school districts, even though those school districts had knowledge that teacher had history of sexual misconduct w/ students
H: Unqualified recommendations constitute negligent misrepresentation – if going to recommend someone, have to disclose whole truth (can’t just give “misleading half truths) = negligence through omission here
Cites Rowland v. Christian – duty of due care owed to everyone
D argues that this decision will lead to employers being reluctant to provide references, but court is unswayed by this policy argument

Question 8

Tarasoff v. Univ. of CA

Answer 8

• F: P killed by Poddar; Poddar was under psychiatric treatment of D; Poddar had stated intent to kill P; Poddar was held in hospital, eventually released
• Therapist-patient is special relationship; therapist has duty to warn foreseeable third-party victims when threat is clear– need to know who is threatened and needs to be credible threat. No liability if doctor doesn’t know who victim would be.
• Dissent – therapist predictions unreliable, undermines the doctor-patient relationship (need confidentiality)
• Statute after Tarasoff provides therapists w/ immunity unless threat is against “reasonably identifiable victim(s)”

Question 9

Reisner: Tarasoff Notes Case

Answer 9

Dr. negligently failed to diagnose HIV, patient’s boyfriend contracts virus – court says Dr. owed duty to bf, he should’ve made patient aware she had HIV

Question 10

Pate v. Threlkel: Tarasoff Notes Case

Answer 10

Dr. has duty to warn children of patient b/c the type of disease was genetic –> third party needs to be known

Question 11

Hardee: Tarasoff Notes Case

Answer 11

must warn patient of risks/effects of any treatment (e.g. risk of driving immediately after the treatment)

Question 12

Carter v. Kinney

Answer 12

• F: P injured while slipping on ice outside D’s home, going to D’s home for Bible study w/ other members of church, but P and D were not friends
• Holding: P is a licensee therefore no duty of due care, only duty to protect from known dangers (D did not know of the add’l ice here)
• Three classes:
1. Trespasser – no duty owed
2. Licensee – has permission, owed duty to protect (act/warn) from known dangers; avoid willful/wanton negligence; no duty to inspect
3. Invitee – has permission and confers/expected to confer a benefit (e.g. customers in a store); owed duty of due care (must inspect for latent dangers)
• Court determines status (T/L/I) as a matter of law – this is not issue for jury

Question 13

Heins v. Webster Co.

Answer 13

General Liability to Non-trespassers:
• F: P falls at D’s hospital, was a licensee (wasn’t there for business purpose)
• Holding: court eliminates distinction between invitee and licensee – says duty of due care for all non-trespassers
• Exercising reasonable care based on 7 factors (similar to Rowland): foreseeability of harm; purpose for entrant entering premises; time, manner, and circumstances when entering; use of the premises; reasonableness of the inspection/repair/warning; opportunity and ease of repair; burden on land occupier and/or community in terms of inconvenience
o Becomes jury question (takes it from judge)

Question 14

Exceptions to General Liability to Non-Trespassers

Answer 14

• Known trespassers – duty to warn about latent dangers
• Open and obvious dangers – no duty to warn (this is a general rule of duty)
• Child Trespassers: Is there an artificial condition that would draw kids in?
• If you know or should know that kids are likely to trespass, then you should take steps to prevents foreseeable injury

Question 15

Posecai v. WalMart

Answer 15

Criminal Activity Case:
• F: Woman robbed at gunpoint outside Sam’s Club; assailant not caught; no security guard in the parking lot; no similar incidents
• H: no duty because danger was not foreseeable and precaution was undue burden
• Court discusses four approaches for foreseeability:
o Specific harm – outdated; no duty to protect patrons from 3d party violence unless specifically aware of imminent harm about to befall them
o Similar incidents – foreseeability established by evidence of previous crimes on or near premises puts landowner on notice; drawback is that it can be arbitrary
o Totality of circumstances – most common; focuses on level of crime in surrounding area, nature, condition, location of land in assessing foreseeability; places greater duty on business owners (preferred in concurrence)
o Balancing test (basically Hand Formula) court adopts here; foreseeability of harm versus burden of duty on landowner; need high degree of foreseeability to impose duty to provide security

Question 16

AW v. Lancaster County

Answer 16

Criminal Activity Case:
• F: P sexually assaulted at school by 3d party intruder who was not efficiently removed from premises
• H: Questions of foreseeability are questions of fact, not law – duty is distinct from foreseeability; here school clearly has a duty, whether they breached their duty is a jury question
• To say “because the attack was foreseeable therefore the defendant had a duty to protect against foreseeable acts of violence” is tautological
• Duty rules are meant to serve as broadly applicable guidelines for public behavior

Question 17

Policy Considerations on Foreseeability-Based Duty

Answer 17

Privity Limitations/Orbit of duty
Statutory Limitations
Negligent Entrustment
Family
Governmental Entities

Question 18

Strauss v. Belle Realty Co.

Answer 18

Privity and Orbit of Duty
• F: Tenant suffered injuries in common area of apt building during blackout caused by ConEd’s gross negligence
• H: liability does not extend to those w/ whom power company has no contract (here, injury occurred in common area, so contract was w/ landowner and not w/ tenant directly, therefore tenant cannot recover)
• Seeks to avoid crushing liability on power co; concern about cost being passed on to consumers and shareholders

Question 19

Moch

Answer 19

• F: Water company failed to adequately supply water to fire hydrant, P’s warehouse catches fire, burns down, fire hydrant doesn’t work
• H: J. Cardozo, this case involved an omission, not action or inaction that would require a duty

Question 20

Reynolds v. Hicks

Answer 20

Statutory Limitations
• F: P injured in car accident by drunk minor who got alcohol at wedding of D’s
• Holding: D’s are social hosts, no duty to 3d parties here (summary judgment)
o Social hosts are different from business entities – can’t reasonably monitor their guests’ alcohol consumption etc. imposes too great a burden
• Premises were not under D’s control
• Statute regarding furnishing alcohol to minors is about protecting minors from their own injuries, not about protecting 3d parties
o Legislature didn’t create private cause of action here
• Distinguishes this from dram shop acts – commercial enterprises can be held liable when someone drives drunk and injures
• Bartenders etc. have more control, can stop serving someone; same w/ designated drivers – White v. Sabatino

Question 21

Vince v. Wilson

Answer 21

Negligent Entrustment Case
• F: negligent entrustment of automobile to reckless and incompetent driver. D didn’t provide the instrumentality (car), but D did provide the money specifically to buy the instrumentality.
• H: liable because parties knew that driver was incompetent (no license, past drug and alcohol use, etc.); dealership also liable because they were told that D had no license and sold to him anyway.
• Further removed negligent entrustment to include providing the financial means to specifically purchase something that reckless person should not have.

Question 22

Broadbent v. Broadbent

Answer 22

Family
• F: P son sues mother for negligence; 2.5 yo falls into the pool, mother walks away, brain damage
• H: reasonable parent test for negligence; did not extend parental immunity here
• Other states:
o NY standard – no suits for negligent supervision of children

Question 23

Riss v. City of New York

Answer 23

Government Entities: Police
• F: P repeatedly threatened, seeks police protection, does not get it, later seriously assaulted by person threatening to assault her
• H: City is not liable; court will not set police priorities; protect general public
• Assigning liability would push resources around and allocate money to certain things, which is the job of the legislature
• Crushing liability—couldn’t possibly protect everyone in the city; doesn’t want to use tax dollars on liability payouts
• Dissent: financial cost of protection is a myth; reasonableness standard would limit liability sufficiently
• Exceptions:
o Schuster: P was FBI informant, gets killed – here liability exists because municipality made “active use of private citizen” – similar to undertaking; once you act, you owe a duty
o Sorichetti v. City of New York: young child abused by father, series of protective orders, made threats, takes child; Police don’t intervene after mother calls 911. Liability for municipality because of previous protective orders

Question 24

Cuffy v. City of NY

Answer 24

Government Entities: Police
• F: Cuffys sought police protection against neighbors after several fights. Police gave assurance they’d do something first thing in the morning. That night, they were attacked brutally by neighbors again.
• Sets out four factor test for duty to provide police protection (very high bar):
1. Assumption by municipality through promises or action of affirmative duty to act on behalf of injured party
2. Agents of municipality know that inaction could lead to harm
3. Direct contact between municipality’s agents and injured party
4. Party’s justifiable reliance on municipality’s undertaking
• H: recovery denied. Cuffys were not justified in relying on police promise to come in the morning once it was nighttime.

Question 25

Mastroianni v. County of Suffolk

Answer 25

Government Entities: Police
• F: Husband fatally stabbed wife after police came and left after domestic violence call, without arresting husband who was still there in violation of protective order.
• H: Applied Cuffy rules. Protective order met elements 1 and 2 by itself. Elements 3 and 4 by officers’ direct contact with decedent, and promise to do “whatever they could.”

Question 26

De Long v. County of Erie

Answer 26

Government Entities: 911
• Dispatcher assurance that help was being sent right away was assumption of duty
• Need direct communication and reliance by caller

Question 27

Merced v. City of New York

Answer 27

Government Entities: 911
• Caller was not the victim—court held that injured party needed to have direct contact with the dispatcher and relied to his/her detriment
• Also held in Muthukumarana v. Montgomery County: girl sexually abused and left out in cold, died of hypothermia. Caller relayed her location, but gave wrong address. No duty because person at risk did not establish a special relationship directly

Question 28

Reis v. Delaware River Port Authority

Answer 28

Government Entities: 911
• F: P-decedent abducted, witness called 911, relaying info about abductor and car. Dispatcher failed to enter info and so no officers were dispatched. Decedent brutally beaten and murdered.
• However, dispatcher negligence like this was not covered by state sovereign immunity

Question 29

Lauer v. City of New York

Answer 29

Government Entities: Gov. Workers
• F: medical examiner case, child’s death ruled homicide, P (father) investigated, later realize that autopsy was incorrect, death was from brain aneurysm, medical examiner never corrects death certificate or alerts father
• Discretionary govt acts – no liability; these are acts involving judgment of worker
• Rule: To find municipal liability, there must be a duty owed directly to a particular person or class of persons, and not simply to the public generally.
• Holding: no duty here because ME’s duty to communicate accurate information is to the police department, not to the father
o Looks to statutory intent – the statute was not meant to protect the P here, so no duty
• Dissent: ME unilaterally possessed exclusive knowledge, so this should be an exception to governmental immunity; would not impose crushing liability

Question 30

Friedman v. State of New York

Answer 30

Government Entities: Gov. Workers
• F: Consolidated case about cross-over collisions on highway
• Discretionary function of government, conflicting expert reports on whether or not to install medians
• When remedial plan is established, unjustifiable delay in implementing the plan constitute breach of municipality’s duty to the public
o Won’t tell govt agency how to set their priorities, but once the plan is established then need to act → can’t have “long gaps of inactivity”
o Gov’t has duty to maintain safe road conditions
o Reasonableness test limits crushing liability here